Barton v Police HC Auckland CRI-2011-404-328

[2011] NZHC 1292

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2011-404-328

BETWEEN  JASON WAYNE BARTON Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         19 October 2011 (by telephone)

Counsel:         M Mann and D Schellenberg for Appellant

A R Longdill for Respondent

Judgment:      19 October 2011

JUDGMENT OF BREWER J

SOLICITORS

Public Defence Service (Auckland) for Appellant

Meredith Connell (Auckland) for Respondent

BARTON V POLICE HC AK CRI-2011-404-328 19 October 2011

[1]      The appellant applies for an extension of time pursuant to s 123 Summary Proceedings Act 1957 to file an appeal against conviction for driving with excess breath alcohol (third and subsequent) contrary to s 56 Land Transport Act 1998.

[2]      The offence occurred around 4:00 pm Sunday 3 August 2008 in Beach Road, Browns Bay.   The appellant was seen to drive his vehicle across the centre line several times, coming into the path of oncoming vehicles and mounting the kerb a number  of  times.    A  subsequent  evidential  breath  test  produced  a  result  of

1003 micrograms of alcohol per litre of breath, over two-and-a-half times the legal limit.

[3]      The  appellant  was  issued  with  a  summons  pursuant  to  s 19B  Summary Proceedings Act 1957 at 5:25 pm on Sunday 3 August 2008, requiring him to appear at the North Shore District Court on Friday 29 August 2008 at 9:00 am.

[4]      On Monday 11 August 2008 the Police laid and filed an information in the

North Shore District Court.

[5]      The appellant eventually pleaded guilty to this charge and was sentenced on

16 June 2009.

[6]      The statutory period for filing an appeal as of right expired in mid July 2009. The notice of appeal was filed on 30 August 2011, and is accordingly more than two years out of time.

[7]      In order to gain an extension of time to file the appeal, the appellant must firstly explain satisfactorily the reason for the delay in seeking to bring the appeal and secondly show that there is a basis on the merits for the appeal proceeding.  In this case the appellant submits that the information, and hence the conviction, was a nullity.   The contention is that s 19B(3) Summary Proceedings Act 1957 was not complied with.   That provision required the information to be filed “no later than seven  days  after”  the  evidential  breath  test.    That  period  expired  on  Sunday

10 August 2008 but the information was not filed until the following day.

[8]      Unfortunately for the appellant, Parliament has enacted s 35 Interpretation Act 1999.  Ms Longdill, in her submissions on this point, sets the section out and helpfully  provides  the  relevant  chronology.     The  point  is  that  under  s 35(6) Interpretation Act 1999 anything that must be done within a limited period of time may, if the last day of that period is not a working day, be done on the next working day.  In this case that means that the last day for filing the information against the appellant was Monday 11 August 2008, the day on which it was in fact done.

[9]      I convened a telephone hearing of the case this morning because it seemed to me that this was a complete answer to the application for an extension of time to pursue  the  appeal.    Counsel  for  the  appellant  recognised  that  this  was  so  and accepted that the application must be declined.

[10]     The  application  for  extension  of  time  for  filing  an  appeal  against  the appellant’s conviction is declined and accordingly the notice of appeal is dismissed.

Brewer J